In Court of Claims Case, Inability to Prove State Was Served with Notice of Claim Required Dismissal

In affirming the Court of Claims’ dismissal of a claim because claimant was unable to demonstrate the state was properly served, the Third Department explained the relevant law as follows:

“A claimant seeking to recover damages  for personal injuries caused by  the negligence . . . of an  officer or employee  of [defendant] must  file and  serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof”….  Both filing with the court and service upon the Attorney General must take place within the relevant statutory period … and, as suits against defendant are permitted only by virtue of its waiver of sovereign immunity and  are in derogation of the common law, “the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction”….   Notably, “a defect in subject matter jurisdiction may be raised at any time, even for the first time  on appeal, because it relates to the competence of the court to consider [the] matter”… .and, therefore, such defect “cannot be overlooked or remedied by either waiver or estoppel” … .  Caci v State of New York, 515844, 3rd Dept, 6-6-13

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